6.3 Remittitur Percentages, Discharge & Exoneration Rules (F.S. 903.28)

6.3 Discharge and Remission — F.S. 903.26 and 903.28

Discharge prevents or removes the forfeiture under a statutory ground. Remission reduces a forfeiture after forfeiture has occurred. Do not make prior full payment of the forfeiture an extra eligibility condition: F.S. 903.28 speaks in terms of an application for remission of a forfeiture and the statutory conditions.

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Four discharge categories — F.S. 903.26(5)

Within the statutory 60-day period, a court must discharge a forfeiture only on one of these four grounds:

1. Impossibility beyond the defendant's control. Appearance as required, or within 60 days afterward, was impossible because of circumstances beyond the defendant's control. Adverse economic consequences alone are not enough.
2. Confinement, deportation, or death. At the appearance time or within 60 days afterward, the defendant was confined in an institution, hospital, or county, state, federal, or immigration detention facility; was deported; or died.
3. Surrender or arrest into qualifying custody. At the appearance time or within 60 days afterward, the defendant was surrendered or arrested and is in a county, state, or federal jail or prison, with a hold placed for return to the court's jurisdiction. Discharge is conditioned on payment of applicable costs and expenses incurred in returning the defendant.
4. The state declines extradition. The state is unwilling to seek extradition within 30 days after the surety's request, and the surety agrees to pay return costs and expenses up to the bond's penal amount.

F.S. 903.26(6) forbids discharge for a reason other than those four. Separately, subsection (8) provides a clerk-discharge route, subject to costs, when before judgment the defendant is arrested and returned to the county where the bond was written or a new bond is posted for the defendant, with the required sheriff or chief correctional officer affirmation.

Remission ceiling schedule — F.S. 903.28

If the statutory conditions are met, the court may remit no more than the percentage for the applicable elapsed time:

These are maximum ceilings, not automatic awards. For the timed tiers, the surety must have apprehended and surrendered the defendant or substantially procured or caused the apprehension or surrender as the subsection requires. The court also applies the statutory cost conditions.

Application, evidence, and notice

F.S. 903.28(8) requires a properly supported application:

• State the grounds in the required affidavit or affidavits.
• Furnish the papers, application, and affidavits to both the clerk of the circuit court and the state attorney.
• Give both the clerk and state attorney 20 days' notice before the hearing.
• Document the surety's role in apprehension or surrender when relying on a timed tier.

Unless the court finds no breach of the bond, remission is conditioned on payment of costs. When the surety did not substantially participate in returning the defendant, the statute directs the relevant return costs to be deducted.

Worked timeline

Assume forfeiture occurs on January 1 and the surety substantially procures surrender:

• March 15 is within 90 days: ceiling 100%.
• June 15 is more than 90 but within 180 days: ceiling 95%.
• September 15 is more than 180 but within 270 days: ceiling 90%.
• December 15 is within 1 year: ceiling 85%.
• The following September is within 2 years: ceiling 50%.
• After the 2-year deadline: no remission under F.S. 903.28.

The application date, proof, both recipients, 20-day hearing notice, surety participation, and costs still matter. The time tier alone does not guarantee the ceiling.

Exam distinctions